Kitzmiller v. Dover Area School District

Trial transcript: Day 17 (October 28), AM Session, Part 1

THE COURT: Good morning to all, and we continue
with testimony of our last witness yesterday, and she may retake
the stand.

MR. BENN: Your Honor, excuse me, I was a little
remiss yesterday when I introduced myself as counsel on behalf of
the reporters. I would also like to introduce my two co-counsel,
put them on the record as well, Terence Barna --

A I would say that I understand positions taken by
the various writers, the various editorial writers.

Q You get your assignments from the editors of the
York Dispatch also, correct?

A In a sense. I have general assignments wherein I
cover the meetings of, like I said yesterday, two municipalities
and a school board. It's been varying amounts of school boards
and municipalities. So in that sense I have the general
assignment I go to the meetings and report on what happened.

Sometimes I will be assigned particular things by
the editors. Those are usually features. For instance, I did a
story on a girl that was doing a motorcycle ride for Cystic
Fibrosis that she put together in honor of her father who just
died, that kind of thing.

Q But sometimes the editors tell you what they re
interested and what they're not interested in as it relates to
stories, correct?

A Only in the sense that -- like, for instance,
after a meeting, I'm call them and say hey, this is what happened
at meeting, and they'll tell me what they're interested in, what
they have space for the next day in the paper, what I can wait to
write the next day; in that sense they do.

So that's more of an issue of planning and how
much space they have in the paper, that kind of thing.

Q And then you write the stories that are of
interest to the editors as a result of that.

MR. BENN: Objection, Your Honor. I think the
nature of your Court order relates to the fact that we re
supposed to be asking questions as it pertains to the articles in
issue, and not in terms as to what the editors think, what the
newspaper's position is, but rather what it is that Ms.
Bernard-Bubb wrote.

MR. WHITE: Yesterday there was some questioning
about her assignments and her beat, that's why I was asking these
questions.

THE COURT: Well, you're right on the line, Mr.
White, as it relates to my order and the parameters of your
permissible areas of inquiry.

I'll allow that question, but I think colorably
you're getting into what I think may be a bias type of
examination. And I'm going to sustain objections if it goes much
farther. But I'll overrule that objection, I'll allow an
answer.

Q So the answer -- the question was then that you
sometimes write -- you write stories that are sometimes of
interest to the editors after you ve had these meetings with the
editors, correct?

A I wouldn't say that would be a correct
characterization. I would just say that I call them, they tell me
what they're interested in for the next day. Like I said, it's
more an issue of how much space they have in the paper, what can
wait a few days, what they would like for the story -- what
stories they would like for the next day s paper.

Q Now, although yesterday you were asked a
question that you haven't been in the courtroom here previously,
but you ve been following this case in the papers?

Q Now, when you go to these meetings of the Dover
School Board, in particular, I know you have other beats, but
that's all I'm concerned about so when I talk about school board
meetings I'm talking just about Dover.

Q So sometimes you have to summarize in your notes
what's taking place.

A I wouldn't say I summarize. Sometimes the
statements that I write down may not be complete statements but
it's still a pretty specific reference to what was said or words
that were used, that kind of thing, but I might not get every
single word of a statement, particularly if it's a lengthy
statement or if it's repetitious.

Q And you don't have any of the people who you re
quoting in your notes verify the accuracy of the quotes you ve
attributed to them in your notes, do you?

A That's correct. The only time I would follow up
with someone is if I was confused by what they said, I didn't
hear it correctly, if I wanted to verify to make sure I
understood. But if it's something that is repeated numerous times
or that I ve heard clearly, I don't feel any need to check for
accuracy because I ve heard it.

Q And you still have your notes from the 2004
school board meetings, right?

Q Now, sometimes do you step out of the meetings
to go to the bathroom?

A I usually try to only do that during breaks,
sometimes they would take breaks, particularly if it was a
lengthy meeting.

Q You sometimes go out of a meeting to conduct an
interview with someone who had spoken during the meeting while
the meeting is going on?

A Occasionally, but usually I try to do that after
the meeting's been completed so that I'm not missing any of the
business that's going on. Sometimes if someone has spoken, if
it's a resident or someone, I might step away during a fairly
benign, like if they're going through the hirings and firings and
people who are taking leaves of absence, that kind of thing, I
might step away to make sure I ve got someone's name and where
they're from, that kind of thing.

Q So the answer to my question is sometimes you do
step out of the meeting.

Q And your articles also that you write, including
the ones we talked about yesterday, or that I didn t, but you did
with the plaintiff's attorney, those sometimes include statements
made to you by people after the meetings have ended, correct?

Q The articles you write about school board
meetings, they capture part then of what happened at these
meetings?

A I would say that when you say part of what
happened, for instance at a school board meeting you might have
policy change come up, school budget be approved, et cetera. I
treat each topic separately, and I try to be as comprehensive
about the content of the discussion, the positions that were
taken, within each subject area, but certainly it doesn't contain
everything that happened at the meeting.

Q So then you're the person who then selects what
part of the school board meeting you want to feature in your
article.

Q And the summaries and these statements that you
re putting in the articles, this is again your interpretation of
what you heard at these meetings?

A No, I wouldn't say it's interpretation. It s
always, in essence, what they ve said. Like I said yesterday,
paraphrasing is mostly a tool to allow you to be concise, and
really to make sure that you're accurate. Someone might make a
number of comments, and if you were to pick out any one quote, it
would be taken out of context and it wouldn't really encompass
their entire position. In that case paraphrasing is a really good
tool because you can encompass the position that was taken
throughout the entire meeting through comments they made,
dialogues they had, and questions they answered from
residents.

Q You're attributing statements to people that are
in response to your questions?

A Sometimes it's in response to my questions and
sometimes it's just what they ve said.

Q So sometimes you can ask a question, and if it's
a yes or no question, the answer or the statement in the article
wouldn't just say yes, it would be an affirmance of your
question?

A Do you have a specific -- that's difficult to
say. Most of the time when I ask people questions, it's not just
a yes or no answer. And usually when I ask a question I try to
create the context within the article to say, you know, in
response to or kind of like a lead in to it so that the reader
knows what the issue is.

Q That's the -- that's based on your writing style
and how you're trying to make an article flow?

A In my experience they make very few changes.
Sometimes, as we looked at in the June 8 article, they might add
something to create context. If they -- they very -- I ve never
had an experience of them editing content.

If they ever have a question, maybe I wrote a
sentence that was awkward or confusing, they'd call me the next
morning and say, hey, this is confusing or too long, how can we
say it better, and we work on it together so that I make sure
that the content is -- accurately reflects what I heard and what
I saw at the meeting the day before.

Q Now, maybe I misunderstood you, but at the start
of your testimony yesterday, and I don't have a copy of your
transcript, but I thought you had said that editors don t add
anything to your articles?

A No, they don't add anything content wise. Like I
said, there are instances -- and let me be more specific about
it, maybe I wasn't articulating myself well. Things that I ve
actually written, they're not adding to or changing without my
knowledge and without basically they call me up and say, hey,
this is awkward and long and, again, it usually has nothing to do
with content. Occasionally they'll call and say, hey, you forgot
the date, or are you sure this is the right spelling. It's
usually that kind of thing.

Occasionally it's more of a stylistic issue, but I
might write a sentence that is long or awkward, and they might
say, hey, what's a shorter way we can say this, this is too long.
It would be something of that nature, but I think I was accurate
in saying that they don't change the content of what I wrote.

Q And then based upon the content of the article,
how you wrote it, for example on exhibit 804, the article we
talked about yesterday, an editor would then add the paragraph
about the Supreme Court decision, and then interview over the
phone the ACLU attorney, correct?

Q Now, the quotes dealing with -- and you can
review the article -- the quotes dealing with Knudsen and Pell,
those are the only two quotes in the article that include the
word creationism, am I right?

Q And you include a statement in quotes when you
re sure about the accuracy of the quotes, right?

A No, that wouldn't be accurate to say. I include
quotation marks when I'm sure that I ve gotten it down verbatim.
But whether or not I'm attributing it to them with paraphrasing
or through a direct quote, I'm sure about the accuracy.

Q Well, my question is then, when something is in
quotation marks in your article, you're sure about the accuracy
of that statement?

Q So having reviewed the article now, just now,
exhibit 804, the only time the term creationism is attributed to
a school board member or a school official is only in a summary
statement that you ve made, right?

Q In reviewing this article then, the only time
the word creationism is in a quote is then with regard to Mr.
Boston of Americans United, in response to a question you posed
to him during your interview?

Now, according to the title, and I understand you
don't write the title, but at least the subtitle it says,
"Creationism Draws 100 People to Dover Meeting." That would have
been written by the editor of the newspaper, correct?

Q That would be the focus of this meeting,
according to your article, correct?

A The focus of the meeting is on creationism and
on the textbook; that would be the focus of the article.

Q If you can review this article, 806, point to
any place where you have the word creationism included in a
direct quote, not a paraphrasing but a direct quote, that you can
attribute to a school board member or to a school official.

Q So nowhere in the article is there a direct
quote attributed to a school official where the word creationism
is used?

A No, I certainly have paraphrased sentences
because it was repeated throughout the discussion but . . .

Q But even though the subject of the meeting,
which went on for an hour and a half, dealt with creationism, you
didn't have any occasion to include a verbatim quote from a
school official or school board member where the use of the word
creationism occurred?

Q Now, column two, on page two, you were -- which
was referred to yesterday, you have a quote from Bill Buckingham,
"Nearly 2,000 years (sic) someone died on a cross for us,
shouldn't we have the courage to stand up for him?" Now,
according to you, Bill Buckingham made that statement at the June
14 , 2004 meeting.

Q Okay. And again, although you mention a few
times in the article as well the term creationism, you don't have
any -- you don't have that word in any quote, a direct quote that
you can attribute to any school board member or school official,
right?

A No, it's in reference to the ongoing debate
about the book and creationism was what had been talked about in
the previous meetings, creating a context.

Q But now at this particular meeting the
conversation is about intelligent design?

A Again, it's creating a context for what had gone
before. And also at this meeting it wasn't clear that they had
abandoned creationism. It was just that they were introducing
intelligent design.

Q Now, in the article, column one, page one, you
have comments by Bill Buckingham about the approval of the book
Biology, in conjunction with a companion text Of Pandas and
People, that that teaches intelligent design. So Bill Buckingham
at this particular meeting would have said Of Pandas and People
teaches intelligent design?

Q And according to your article, column one, page
one, Of Pandas and People is a book published by Foundation for
Thought and Ethics, and questions the science behind Darwin's
theory of evolution, is that correct?

Q But at the August 2 meeting then, as far as what
was being discussed then, it was the book Biology, Prentice Hall,
and then the companion book Of Pandas and People, which teaches
intelligent design, right?

A Yes, he did. Let me clarify, he made reference
to a law firm offering service, but didn't go into detail. So I
did go up and question him. So he didn't use the name Thomas More
or go into very much detail during the meeting. I questioned him
after the meeting.

Q And it was after the meeting that he gave you a
copy of a letter from the Thomas More Law Center to him and the
district?

Q And that quote says, from the Thomas More Law
Center letter, "A textbook adopted by the school board that
presents an alternative theory to evolution does not violate the
constitution as long as the alternative theory is appropriately
presented." Correct?

Q Now, in the first paragraph of this article you
say that the school board is considering purchase of a companion
textbook to teach creationism as part of the curriculum. That's
your statement, right?

Q And what you found out from your limited
research according to your article is that Foundation for Thought
and Ethics had prepared the book, and it just questions the
science behind the theory of evolution, correct?

Q And the comments that you have summarized here
about the teaching of evolution has never caused her to see
someone lose their faith in God; were those comments that she had
made during the public comment portion of the meeting?

Q Did you walk up to her afterwards and ask her
any further questions about those statements?

A No, I believe I went up to her afterwards. She
had said her name, but I didn't get the spelling of it correctly,
so I did go up to her, get the spelling of her name, and she -- I
asked her, you know -- she had made reference to being a teacher,
so I asked her for a little bit more detail on that.

Q But these were just her own just comments, not
based upon any, like, scientific study she had done or anything
like that, right?

Q And school board members have come up to you
personally and commented about inaccurate statements in your
articles?

A No, not specifically. I ve had two
off-the-record conversations with Dr. Nilsen and with Mr.
Bonsell, but they asked for those to be off the record, so I
wouldn't speak to that. And then the only other instance would be
Bill Buckingham coming up to me, and I included that in the
article, in reference to when he said you have to distinguish
between -- in the September whatever that article is, September
9th, I think, 3rd.

Mr. White asked you several times whether you
verify the accuracy of your quotes or the context of the quotes
after you write them down. And then I think you responded to all
of those questions that you don t. Why not?

A Again, because I ve heard them, they're in my
notes, I remember them saying them, I'm writing the articles
almost -- in most cases, specifically talking about these
articles, right after the meeting. The only time I would verify
is if I didn't understand what was said, if I didn t hear it
correctly, if there was some confusion. Otherwise I just assume
that people can read the articles and go through the proper
channels if they felt like something was inaccurate.

Q And Mr. White asked you about the quote that you
attributed to Mr. Buckingham about "2,000 years ago someone died
on the cross." And he asked you if you had ever -- if he made
that quote just once, and I think you answered that he did.

MR. WALCZAK: Your Honor, I would propose that we
discuss the exhibits after we ve completed Mr. Maldonado s
testimony, since I think it's going to be the same fight.

THE COURT: Yeah, I just came to the same
conclusion. I think rather than interrupt the reporter s
testimony, we'll hold it, keep moving, and we'll hold that until
later.

MR. WALCZAK: Your Honor, it was also suggested to
me that there is some overlap with the articles testified to --
about the articles testified to by Mr. Stough, which we have not
resolved yet. And it might be an appropriate time to include
those articles in the discussion that we have about these.

Q Have you ever discussed with her what you might
have seen before you sit down to write an article?

A I think we ve talked about meetings in general,
but not for the sake of writing articles.

Q Now, we're going to discuss eight articles that
you wrote between June and December of 2004. And I just -- I want
-- it's the same articles that you were asked about by Mr. White
at your deposition a couple of weeks ago.

Do you sit here today under oath and say that the
articles you wrote accurately depict what happened at Dover
School Board meetings?

A Yes, I do, however I would like to note that
these are Heidi's articles, not mine, that are up here.

Q And do you testify today that the quotes you
attributed to the people are accurate to the best of your
knowledge based upon what you heard them say?

Q In that second column, it says, "Board member
William Buckingham, who sits on the curriculum committee, said a
book had been under consideration, but was declined because of
its one-sided references to evolution."

Q There's a quote down at the bottom of the --
starting at the bottom of the third column, attributed to Mr.
Buckingham. Quote, Have you ever heard of brainwashing. If
students are taught only evolution, it stops becoming theory and
becomes fact.

Q Now, in that first full paragraph on the first
-- I'm sorry, on the fourth column, it says, "After the meeting
Buckingham said." Do you remember when and where that
conversation with Mr. Buckingham took place?

A That would have took place near his seat on the
board as the meeting ended.

Q So you would have asked him, something like --
do you remember what question you asked him?

A I probably would have said something, Do you
believe -- do you believe that the people of other faiths in your
district, Buddhists, Muslims, people of other faiths, that they
need to be considered in this matter?

Q And then you have a quote attributed to him,
"This country wasn't founded on Muslim beliefs or evolution. This
country was founded on Christianity and our students should be
taught as such." And that's in quotes, so is that verbatim what
he said?

Q Direct your attention to the bottom of the first
column at the top, it says, "During this past Monday night s
board meeting" -- and then going over to the second column, you
say, "During this past Monday night's board meeting," that would
have been the June 7 board meeting?

Q It said, "Board members, Alan Bonsell, Noll
Weinrich and Buckingham spoke aggressively in favor of having a
biology book that includes the theories of creation as part of
the text."

Now, you mention three board members who spoke,
quote, aggressively in favor of having a biology book that
includes the theories of creation as part of the text. So you
remember those three individuals talking about having an
evolution book that -- or biology book that includes discussion
of creationism?

Q And then in that next paragraph you have
written, "Asked if he thought this might violate the separation
of church and state, Buckingham called the law" -- and then you
have in quotes, "a myth." So, again, that's a quote of what Mr.
Buckingham said?

Q And in those last three paragraphs in the last
column at the bottom of the page, you wrote, "On Wednesday
afternoon Noll Weinrich, a member of the Dover Area School Board
said, students needn't worry about that."

And what are you referring to there, when you say
"about that"?

A It refers to the previous paragraph, "Once these
types of religious themes are introduced into a classroom, it
puts a lot of pressure;" that paragraph.

Q "So students needn't worry about that." And then
you say that Mr. Weinrich said, "Because the board's goal is not
to say that students must believe in creationism or the existence
of a creator, but he also said that creationism does not imply
the existence of an intelligent life force ultimately
responsible" -- I'm sorry, "does imply the existence of an
intelligent life force ultimately responsible for all life." Is
that correct?

Q Then in that second to last paragraph in the
third column, you wrote, "Then he stressed again that no one will
be required to believe in creationism or a creator, any more than
they are currently required to believe in evolution." So when you
say "he stressed again," is that something he said to you more
than once?

Q And then you have a direct quote attributed to
him in that last paragraph, and it reads, quote, What I am saying
is that when you teach only one theory -- and then in parenthesis
-- evolution, that theory becomes a fact. I m not saying that
students must believe in creation, but I do believe they must
consider the possibility." Is that a verbatim quote?

MR. WALCZAK: Your Honor, I'm not going to take him
through the rest of these articles in as much detail as I did
with Ms. Bubb, but we can break any time Your Honor feels
appropriate.

THE COURT: Why don't we take a break now. I think
that would be appropriate before you get into the next area.
We'll take a 20 minute break, and then we'll reconvene after that
and you can pick up your direct again.